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2022 (5) TMI 478 - AT - Service TaxRectification of mistake - error apparent on the face of record - Maintainability of appeal - rejection on the ground of time limitation - appeal was filed before Commissioner (Appeals) who has rejected the same as being filed beyond a period of three month (two months plus one condonable month), from the date of the original order - rectification of mistake - Whether it is 22.11.2019 the date of order in original or it is 06.10.2020 the date when the original authority communicated the order rejecting the ROM dated 06.10.2020 to the present appellant to be the relevant date under section 85(3A) of the Finance Act 1994 for period of two months therein to reckon? HELD THAT:- Perusal of the provision of section 74 of the Finance Act 1994, makes it clear that after an ROM has been filed the order wherein the mistake has been alleged can be amended in any possible way, as mentioned in the above provision, depending upon the facts of each case. This particular perusal is sufficient for me to hold that once an application for rectification of mistake has been adjudicated by the original adjudicating authority on the merits, the final order of original adjudicating authority irrespective that ROM was rejected or allowed, i.e. irrespective that the original order was amended or not, the date for original order to attain finality is the date of the order of the said ROM application. The perusal makes it clear that the appellant-assessee had since paid certain amount of tax and the demand was raised on the gross amount that the absence of the benefit of cum tax was alleged to be an error apparent on record - the submission of the learned DR that the prayer in the application was such which could be raised before the appellate authority as above plea is held to have justifiably been raised by the original adjudicating authority only, cannot be agreed upon. Thus, the relevant date for a period of two months to reckon in terms of section 85 of the Finance Act 1994 is the date when the original adjudicating authority after deciding the application praying for rectification of mistake in the original order passed by the said Original Adjudication order and communicated the same to the said applicant - in view of the adjudication since the relevant dated is held to be 06.10.2020 when the order about ROM application was communicated to the appellant. Admittedly the appeal before the Commissioner (Appeals) was filed on 07.12.2020, it becomes clear that the appeal was filed within the period of two months required to be calculated for filing the appeal before Commissioner (Appeals) (date of order has to be excluded in terms of the provisions of General Clause Act Section 9). In view of the entire discussion the findings of Commissioner (Appeals) while rejecting the appeal before him on the grounds of limitation are held absolutely wrong. The order is thereby set aside. However, since the order was on the technical ground of limitation, Commissioner (Appeals) is required to precisely and properly adjudicate the same on the merits of the case. Accordingly the matter is remanded back to the Commissioner (Appeals) for adjudication of merits. The appeal stands allowed by way of remand.
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